Business Directors and Officers
If your business is incorporated, does it have a board of directors and corporate officers?
Do you serve on a board of directors?
If the answer is yes to either question, you could be exposed to lawsuits from shareholders. They may sue you, alleging that you committed acts that reduced the corporation's value. Lawsuits may also arise out of employee practices, allegations of conflicting interests and from providing information to the investing public.
Decisions made by directors and officers impact the viability
and value of a corporation. The current issues of accounting practices,
financial reporting, and the use of corporate assets have resulted
in an increase of lawsuits being filed against executive boards.
Directors and Officers (D&O) coverage should be considered a
necessity for corporate entities. D&O coverage supplements the
protection provided by General Liability policies since the former
responds to legal actions filed by shareholders, customers, scorned
merger partners, and creditors.
Corporate
directors must take steps to determine whether D&O coverage
exists. If D&O coverage is in place, boards should also determine
the amount of coverage available for handling defense costs.
Any amounts paid for legal costs are subtracted from the overall
policy limits and are not a separate coverage. Criminal acts are
not covered by D&O Insurance. However, the cost of providing
a legal defense until criminality is determined may be covered.
In the past, it was common for a director facing a lawsuit to have
any related expenses handled by a corporation's operating funds.
Today, such agreements have little value, especially for operations
facing bankruptcy or those that cease operation.
The increase in shareholder lawsuits has created a much tighter
market, so the application is typically completed by one or two
key executives. Both the applicant board and the insurance carrier
rely upon the accuracy of the information provided by the persons
completing the application. A problem arises because of how an
insurer relies on the information. Typically, the insurer treats
the information given by one or two persons as though it were
received by all of the persons on the board. Insurers often either
deny coverage or deny claims when there is evidence that the
information is inaccurate. In other words, fraud or errors caused
by an individual officer or director could eliminate coverage
for all other directors and officers.
When coverage is not available or if it is denied, a director
or officer may face the financial nightmare of having to handle
his or her own legal expenses and costs of an award. Therefore,
it is very important to take care that a D&O policy provides
the anticipated protection. It is also important that a board
takes steps to oversee the application process and to make sure
that the provided information is accurate. Another step may be
to look for D&O coverage that offers separate coverage to directors
and officers so innocent parties do not have their protection
stripped away due to the deliberate, false actions of others.
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